Court rejects deep-brain-stimulation patient's contract, IIED claims against Boston nonprofit hospital

A patient dissatisfied with deep-brain stimulation (DBS) to treat her depression could not prevail against her nonprofit hospital, the Massachusetts Appeals Court ruled yesterday, in part because she sued in contract rather than medical malpractice.

The plaintiff-patient sued Brigham & Women's Hospital, Inc. (BWH), in Boston over her DBS treatment, which is experimental with respect to depression, but is approved to treat Parkinson's.  BWH paid for the $150,000+ treatment, which the plaintiff's insurance would not cover, with the design of expanding a program in psychosurgery.

CT scan of DBS implants
(Dr. Craig Hacking, A. Prof Frank Gaillard CC BY-SA 4.0)

The plaintiff initially reported favorable results.  But the relationship between patient and hospital "sour[ed]," the court explained.  The plaintiff became dissatisfied with the repeated interventions required to replace batteries and refine the DBS.  She believed that the hospital was short-changing her treatment because the psychosurgery program was not taking off as hoped.  The hospital pledged to do what was needed to support plaintiff's continued treatment, but the fulfillment of that pledge incorporated some cost-benefit analysis.  And the hospital would not accede to the plaintiff's demand that BWH pay for her treatment elsewhere.

The plaintiff sued BWH for breach of contract, promissory estoppel, and intentional infliction of emotional distress (IIED).  The trial court entered summary judgment for the hospital, and the Appeals Court affirmed.

BWH (Jim McIntosh)

The court's opinion spends most of its pages establishing that there was no broken promise to support the breach of contract and promissory estoppel claims.  The hospital promised to treat the plaintiff for free, and it never charged her.

Of salience here, the court also concluded that the plaintiff had misstated a medical malpractice claim as a breach of contract claim, possibly to get around the $100,000 state cap on medmal liability for charitable organizations (not to mention the claims-vetting process of the commonwealth's medical malpractice tribunal).  The plaintiff asserted medmal would not be the appropriate cause of action for an experimental treatment and a dispute over cost.  But the court pointed to the plaintiff's repeated claims of the defendant's failure to comply with "scientific and ethical standards."

Finally, the court's treatment of IIED was instructive, if routine:

To prevail on this claim, [plaintiff] must prove "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was 'extreme and outrageous,' was 'beyond all possible bounds of decency' and was 'utterly intolerable in a civilized community'; (3) that the actions of the defendant were the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was 'severe' and of a nature 'that no reasonable man could be expected to endure it'" (citations omitted) [gendered references in original] ....

BWH's actions do not constitute the sort of extreme and outrageous conduct that would allow [plaintiff] to recover for intentional infliction of emotional distress. BWH's alleged wrongdoing arose in the context of its oral agreement to provide hundreds of thousands of dollars in free care to a patient who otherwise could not afford treatment. Even putting "as harsh a face on [BWH's] actions ... as the basic facts would reasonably allow" [citation omitted], no jury could find it utterly intolerable in a civilized society for BWH to discuss alternative treatment options with [plaintiff], to take cost into account in determining what treatment to provide, or to refuse to pay for her treatment at another hospital (without interfering with her ability to transfer her care at her own expense).

Thus, the court rejected IIED as a matter of law.

The case is Vacca v. The Brigham & Women's Hospital, Inc., No. 19-P-962 (Mass. App. Ct. Sept. 21, 2020) (oral argument).  Justice Eric Neyman wrote the unanimous opinion for a panel that also comprised Justices Englander and Hand.

Battery, IIED in play if medical staff ignore patient's 'stop,' court rules

Medical professionals may be liable for battery and intentional infliction of emotional distress for failing to heed a patient's withdrawal of consent, a Massachusetts Appeals Court reversal warned in February.

Brigham and Women's Hospital is a teaching hospital
of Harvard Medical School in Boston.
Photo by trepulu CC BY-NC-ND 2.0 (2010).

According to the appellate court opinion, evidence in the case supported the plaintiffs' disputed claim that terminally ill cancer patient Donna Zaleskas begged staff at Brigham and Women's Hospital to stop X-rays of her leg because of her physical discomfort, but that X-ray technicians proceeded anyway.  On behalf of Zaleskas, who succumbed to cancer, survivors are suing the hospital for battery and intentional infliction of emotional distress, upon the theory that Zaleskas withdrew consent.  The Superior Court awarded summary judgment to the defense, and the Appeals Court reversed and remanded.

Thirty-seven-year-old decedent Zaleskas was a personal injury and product liability attorney in New York and alumna of Boston College Law School.

A finer line than one might expect separates theories of negligence and battery in many medical malpractice cases.  When a medical professional touches or otherwise physically treats a patient without, or beyond the scope of, the patient's consent, the action can simultaneously satisfy the test for intentional battery—defendant intentionally effecting physical contact that is unwanted by the complainant—and negligence—defendant's failure to comport with the standard of care of a reasonable professional under the circumstances.  Consent is an affirmative defense to intentional torts, like assumption of risk is a defense to negligence, but scope of consent often presents a thorny question of controverted fact.  Of course, patients with the benefit of hindsight are ill inclined to suppose that they consented to physical contact that caused harm, so intentional tort claims are often rationally articulable alongside accident claims in medmal lawsuits.

In the interest of doctrinal clarity, courts often, and in some jurisdictions, upon some facts, must, channel cases into a distinct rubric for "medical malpractice" that sits under or alongside the negligence umbrella, regardless of whether the case might be characterized as intent or accident.  That's a modern trend.  Massachusetts is more permissive in preserving conventional claims in intentional torts in medmal when the facts fit the bill.  The difference can be important in different dimensions.  A defendant's insurer might deny coverage, under policy terms, for intentional torts.  At the same time, intentional torts may give a plaintiff access to greater, even punitive, damage awards.

The Appeals Court ruled Zaleskas's claim fit for hearing in the intentional tort framework.  The court wrote plainly, "We now hold that if a patient unambiguously withdraws consent after medical treatment has begun, and if it is medically feasible to discontinue treatment, continued treatment following such a withdrawal may give rise to a medical battery claim."  In the instant case, "a reasonable jury could find that saying stop or words to that effect, in the particular factual context at issue, was sufficient to withdraw consent."

The court ruled furthermore, to the plaintiffs' advantage, "that consent to have one's body touched or positioned for an X-ray is not a matter beyond the common knowledge or experience of a layperson and does not require expert medical testimony."

The case is Zaleskas v. Brigham & Women's Hosp., No. 18-P-1076 (Mass. App. Ct. Feb. 11, 2020) (Justia). Justice Henry wrote for a unanimous panel with Rubin and Wendlandt, JJ.